Citation Nr: 0800755
Decision Date: 01/08/08 Archive Date: 01/22/08
DOCKET NO. 03-08 714A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for psychiatric disability,
claimed as post-traumatic stress disorder (PTSD) and anxiety
reaction.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Steven D. Reiss, Counsel
INTRODUCTION
The veteran served on active duty from December 1962 to July
1965.
This case comes before the Board of Veterans' Appeals (Board)
from a July 2002 rating decision issued by the New Orleans,
Louisiana, Regional Office (RO) of the Department of Veterans
Affairs (VA) that denied service connection for PTSD.
In April 2004, the veteran testified at a video conference
hearing before a Veterans Law Judge of the Board. The Board
informed the veteran that the Veterans Law Judge who
conducted the hearing was no longer employed by the Board and
advised him that he was entitled to another hearing. In a
signed August 2007 statement, he reported that he did not
wish to testify at another Board hearing. As such, the Board
will adjudicate his claim based on the current record.
FINDING OF FACT
Resolving all reasonable doubt in the veteran's favor, his
anxiety disorder NOS, and PTSD, had their onset during
service.
CONCLUSION OF LAW
Anxiety disorder NOS and PTSD were incurred in service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303, 3.304 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In this decision, the Board grants service connection for
anxiety disorder NOS and PTSD, which represents a complete
grant of the benefit sought on appeal. Thus, no discussion
of VA's duties to notify and assist is necessary.
In his statements and testimony, the veteran maintains that
he has an acquired psychiatric disability due to an in-
service assault. In support, he reports that he was
physically assaulted by two servicemen and beaten on his head
with a baseball bat. He states that he was rendered
unconscious after this incident and was treated at a hospital
during active duty. The veteran reports that his psychiatric
problems began after this incident but until recently that he
did not seek formal treatment. In addition, he cites the
opinions provided by his private treating physician, Dr. J.
Michael Rooney, Jr., who links his psychiatric disability to
service.
The service medical records show that the veteran was treated
at a hospital in early 1964 for a reported fall and resulting
trauma to the head. These records reflect that he had a one-
inch laceration on the right parieto-occipital area of the
head, but that normal neurological testing was negative. He
was released to active duty two days after admission.
As the Board noted in the August 2004 remand, the veteran
testified that he had sustained the head injury not due to an
accidental fall as indicated in the service medical records,
but due to an in-service physical assault. He explained that
it was common for servicemen who had engaged in physical
altercations not to report the truth as to how resulting
injuries were incurred. Instead, it was common to report
these incidents as accidental falls.
In the August 2004 remand, the Board observed that in an
August 2002 affidavit, DCM, a Marine who served with the
veteran, attested to his personal knowledge of the veteran's
physical altercation with other servicemen in which he was
"knocked unconscious by someone swinging a baseball bat."
The Board found the veteran's testimony and DCM's were
credible and consistent with service medical records
documenting treatment for head trauma, in essence concluding
that the in-service stressor was corroborated.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide
that service connection may be granted for any disease
diagnosed after discharge when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). In determining
whether service connection is warranted for a disability, VA
is responsible for determining whether the evidence supports
the claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Service connection for PTSD requires (1) medical evidence
establishing a diagnosis of the condition in accordance with
the provisions of 38 C.F.R. § 4.125(a); (2) a link,
established by medical evidence, between current symptoms and
an in-service stressor; and (3) credible supporting evidence
that the claimed in-service stressor occurred. 38 C.F.R.
§ 3.304(f).
In December 2001, a VA examiner reported that preliminary
results indicated that the veteran met PTSD criteria,
apparently based upon the veteran's accounting of in-service
physical assault.
In November 2002, the veteran was afforded a formal VA
psychiatric examination. The psychologist concluded that the
criteria required for a diagnosis of PTSD were not met.
Instead, the examiner diagnosed the veteran as having anxiety
disorder, NOS and opined that it was more likely than not
that many of the veteran's psychological complaints were, at
least in part, related to the experience of the in-service
assault. In a June 2005 addendum, the psychologist
essentially reiterated this diagnosis.
In an August 2004 statement, Dr. Rooney reported that he had
treated the veteran for anxiety for five years, and that
after reviewing his medical records, concluded, "There is no
question this could have caused his PTSD." He added that
the in-service assault was without question contributing to
his anxiety.
In a July 2005 statement, Dr. Rooney indicated that he had
treated the veteran since January 1997. He reported that
based on his treatment and after reviewing the service
medical records, the veteran had PTSD due to the in-service
assault. In March 2007, Dr. Rooney reiterated the diagnosis
of PTSD.
Thus, the Board has already determined that the in-service
assault, i.e., a corroborated stressor, occurred, and the
medical evidence uniformly shows that he has a psychiatric
disability, whether it is diagnosed as anxiety disorder, NOS,
or PTSD, that is related to that in-service injury. Thus,
with resolution of all reasonable doubt in the veteran's
favor, the Board finds that service connection for anxiety
disorder, NOS, and PTSD is warranted.
ORDER
Service connection for anxiety disorder, NOS, and PTSD is
granted.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs